Con-Court asked to stop BVR process

HARARE – A law expert has filed another urgent lawsuit in the
Constitutional Court (Con-Court) seeking to stop biometric voter
registration (BVR) by the Zimbabwe Electoral Commission (Zec) using an
Electoral Act under legal challenge.

The latest suit comes in the wake of constitutional law expert Alfred
Mavedzenge’s May 15 suit in the same court, challenging the
constitutionality of the Electoral Act, arguing it gives the government
the power to veto regulations promulgated by the Zec.

His lawsuit sought an order to declare section 192 (6) of the Electoral
Act (Chapter 2:13) constitutionally invalid because it gives Justice
minister Emmerson Mnangagwa power to approve regulations or statutory
instruments developed by the Zec.

Before his Electoral Act challenge has been set down for hearing in the
Con-Court, Zec announced that it will soon publish regulations on BVR so
that they can start the process of voter registration and will promulgate
the regulations using outdated provisions of the Electoral Act, which
require approval by Mnangagwa before Zec publishes them.

Mavedzenge said in his court papers this is unconstitutional, citing his
case that is pending in the Con-Court in which he is challenging the
constitutionality of the very same provisions of the Electoral Act, which
Zec now seeks to use in order to pass regulations on voter registration.

Dismayed by Zec’s attempt to bypass this court challenge, Mavedzenge went
back to the Con-Court on Thursday to file an urgent chamber application
seeking an order to stop Zec from promulgating regulations on voter
registration until his existing constitutional challenge to section 192
(6) of the Electoral Act is finalised by the apex court.

In the latest suit, Mnangagwa, who is also the vice president, is cited as
the first respondent; Rita Makarau, the Zec chairperson, is cited as the
second respondent and the Attorney-General Prince Machaya – cited in his
official capacity as the principal legal adviser to the government – is
the third respondent.

“In order to protect my constitutional right to a free and fair election,
it is not sufficient for me to only seek the urgent determination of my
constitutional challenge, but it is also necessary for me to request this
court to bar the first respondent (Mnangagwa) from exercising any powers
in terms of the impugned provision as well as interdict second respondent
(Makarau) from proceeding to promulgate the regulations on voter
registration and or any other regulations until my constitutional
challenge to section 192 (6) of the Electoral Act is determined,”
Mavedzenge said in his founding affidavit.

He said all the respondents were duly served with his application and none
of them have filed notices of opposition and were therefore now barred as
provided in Rule 17 (5) of the Court Rules.

The application is expected to be heard this week.

If granted, Zec’s BVR process will have to wait until the court case is
finalised.

Mavedzenge insists the Electoral Act must be realigned to the new
Constitution first before there are fresh general elections, expected
mid-2018.

He argued that the idea behind his court application was to get the
Electoral Act realigned through court judgments, since the Justice
minister “seems adamant not to realign the laws.”

“If granted, the relief that I seek from this court will affect the second
respondent in the sense that the Zec will be barred from promulgating
regulations until the constitutionality of section 192 (6) of the
Electoral Act is determined by this court,” Mavedzenge argued.

“If this matter is heard urgently by this court, my right to a free and
fair election will be vindicated and second respondent will be able to
proceed to promulgate regulations with certainty that their actions (as a
commission) are constitutionally valid in the sense that they are acting
with the full independence that the Constitution has intended for them.”

This also comes as a social movement has finished collecting signatures
for a class action lawsuit on behalf of Zimbabweans seeking the alignment
of the Electoral Act to the new Constitution.

#IAMZIMBABWE social movement, being spearheaded by Advocate Fadzayi
Mahere, has obtained 100 applicants and was moving to file a High Court
application for the certification of the class-action lawsuit.

The lawsuit will accuse government of flagrantly violating provisions of a
new Constitution voted for by 95 percent of Zimbabweans in a 2013
referendum.